Probate & Trust Litigation

A resource for lawyers and the public in Massachusetts and New Hampshire for information on will contests, trust disputes, guardianships, conservatorships, elder exploitation, fiduciary duty claims, and other probate litigation disputes.

Comments & Insights

At our request, NH Probate Court Justice Mark Weaver has certified for interlocutory appeal an important standing issue of first impression and the NH Supreme Court has now accepted the appeal. In In re Estate of Mesiti, the son of the testator filed claims to contest the validity of his father’s last will and testament on alleged […]

The MA and NH Trust Codes offer trustees important opportunities to reduce the statutes of limitations for actions to contest trust validity and the NH Code offers trustees an opportunity to reduce the limitations period governing claims of breach of fiduciary duty against them. Although some of my colleagues worry that taking the steps outlined […]

In our cases, demands and actions for accountings by attorneys-in-fact under powers of attorney are a common feature. We have updated the Pleadings Bank to include a draft POA accounting and litigation hold demand which you can access at this link.

My view, often expressed to clients and in presentations, is that capacity is the key issue in most undue influence cases. Unless the testator suffered significant diminished capacity at the time the will was signed, a contest of the plan on grounds of undue influence is unlikely to succeed. A finding of undue influence requires […]

I presented on April 18 at a National Business Institute education program for New Hampshire lawyers “Probate Administration From Start to Finish“ I was to cover the following probate litigation topics, but as sometimes happens ran out of time. Will and Trust Contests Power of Attorney and Constructive Trust Claims Pretermitted Heir Claims Creditor Claims and […]

With the highest duties in law and significant liability exposure, fiduciaries generally are entitled and, in the exercise of due care may be required, to engage counsel at trust expense for guidance as to the proper administration of their responsibilities. When the fiduciary’s conduct is contested, she may be able to defend the claims by […]

My colleague George Cushing and I will be joining Joseph Bierwirth, Jr. as panelists in the MCLE 19th Annual New England Estate Planning Conference 2018. Our presentation is entitled “Fiduciary Risks in Exercising or Not Exercising the Power to Decant Trust Assets.”

In a prior post, I discussed that a decision by the NH Supreme Court in In re Teresa Craig Living Trust finding that the NH pretermitted heir statute applies to trusts would upheave NH trust law. Given that the case turns on the interpretation of section 1-112 of the NH Trust Code, which is drawn from the […]

I had the pleasure of presenting at a seminar for NH lawyers this week entitled “Probate: Everything You Need to Know” and spoke about probate litigation issues, including will and trust contests and POA accounting, constructive trust, pretermitted heir, and breach of fiduciary duty claims. Here are my NH Probate Litigation Seminar PP Slides Feb. […]

Congratulations to Roy McCandless on his big win for the trustee in Randall v. Mahan, a case in which Judge Gary R. Cassavechia acting as Judicial Referee carefully analyzes reliance on counsel as a defense to breach of fiduciary duty claims. The Order is important reading for counsel representing trustees or beneficiaries. Circuit Judge Michael L. Alfano adopted […]